The Flagler County Commission today decisively rejected a proposed mediation agreement between the county and Captain’s BBQ that would have settled the lawsuit Captain’s filed against the county a little over a year ago, once the commission rescinded approval of a new lease with the restaurant.
The proposal was almost bizarrely generous to Captain’s, providing for continued low rent for two decades (until 2041), giving Captain’s a right to use a pavilion in the park on six holidays, without applying for the use as any other user would have to, and committing the county to carry out vast repairs upfront and all repairs and maintenance on the building, inside or outside, through the life of the lease.
The agreement was in essence more generous than the disputed lease agreement but for one difference. The 2018 lease would have permitted Captain’s to build a larger restaurant in the center of the park, at Captain’s expense. That lease drew staunch opposition from Hammock residents and others, forcing commissioners to backtrack and rescind their approval. Commissioners were willing to make some concessions, such as repair the existing structure and provide for some maintenance in the future. But they were not willing to turn Captain’s into a welfare account on taxpayers’ dime.
“I’m absolutely in favor of declaring an impasse on this mediation. There’s a number of things here that are very concerning to me and that I could not accept. The rent is not even close to market rate,” Commissioner Donald O’Brien said, using the most forceful terms against the agreement. “I can’t accept any control whatsoever of the pavilion for not even one day, it should be first come first served for the public. I’m real uncomfortable with renewal options that take us out to 2041. As I said when I voted no against this thing from the start, I’d be perfectly happy if this lease expired in 2026 as it currently stands, and then we either rebid the whole process out again, or do away with the facility as it is.”
The board could have approved the agreement, or directed its attorney to continue mediating–or declare impasse. Commissioners declared impasse. That means Captain’s lawsuit against the county will proceed, though that won’t affect Captain’s continued operations as a restaurant at Bing’s.
Commission Chairman Dave Sullivan said the only option he’d consider was impasse. Commissioner Greg Hansen agreed, and moved not to accept the mediation proposal.
Impasse means the mediation is over. “The consequence of that decision is then, that the litigation will renew.” The county has filed a motion to dismiss challenging the legal argument Captain’s is advancing. (The county also has a nuisance case previously settled in which the county is invoking an indemnity provision.)
When the proposal was initially submitted to commissioners, Captain’s was asking for 18 weeks plus six national holidays when it would have first right of refusal on the use of the pavilion. At the beginning of today’s meeting, that had been reduced to just the six holidays. But it wasn’t nearly enough.
Jane Gentile-Youd, a former commission candidate and one of three members of the public to speak, said the county can recover attorneys’ fees should it win its case. She called the proposal “the biggest piece of garbage I have ever seen,” though she has routinely applied similar hyperbole to a long list of county projects or issues over the years. “Let them live out the lease or go to hell,” she added.
A Palm Coast resident wondered why residents pay market rents and a business would not. “I’m just baffled how the first agreement being proposed ended up being better than the second proposal being proposed,” the resident said. Flagler Beach City Commissioner Rick Belhumeur, addressing the commission, called it “absurd” that the lease drawn out to 2041 without profit sharing with the county. He said Flagler Beach’s lease with the Funky Pelican includes such a profit-sharing provision.
The new lease terms would have begun in 2026, leaving in place the original 2011 lease, which commands less than $1,000 a month rent.
Commissioner Joe Mullins appeared more interested in ending litigation, saying the county had spent a ear and a half on it already at great cost (at one point he asked Al Hadeed, the county attorney, how much he’d be making per hour in the private sector. Hadeed seemed taken aback by the question, but said $450 to $500 an hour. Hadeed makes a fifth to a quarter of that.)
Mullins then returned to the issue a few moments later.
“Mr. Hadeed, we do face possible litigation, so whatever we decide up here, because that lease was signed so fast, we still face possible litigation–”
“We are in litigation right now,” Hadeed said.
“Well, an actual suit, it will go to that court, and they will make a decision that we have no control over, correct? And we’ll be forced to follow it,” Mullins continued. (The county has been facing “an actual suit” since June 2018: that’s why the mediation step, which is required in all civil suits.)
“Well, the route of this case will likely be through a jury trial,” Hadeed said, instructing Mullins on the basics of the judicial system, “then the jury will render its verdict and the court will act in accordance with the law, then that judgment will come down, either party can then appeal, but ultimately the court–the court system is going to decide who has what, who owes what, what the attorneys’ fees are, etcetera. Does that answer your question?”
“Yeah, I just want to say based on that, and business,” Mullins said, referring to his own experience as a landlord, “we have had some lawsuits like this where we have had to have tenants that we did not want to have, and it went very south like this, and we were forced to pay very sizable–either pay a very sizable judgment or we had to have them as a tenant, so I do want the public to understand that even though we’re doing this up here, which I totally support the conditions that we are faced, with what commissioner O’Brien said, but we are faced with that.”
O’Brien then clarified, addressing Mullins directly: “For me there are just too many negatives here, we took our best shot at the mediation,” O’Brien said, “and if this is the end result of it at this point, as I’ve already stated, I’m making my comments and my recommendation with the full understanding that we’re going ahead to possible jury trial, and if that’s the way it is and we can’t get a better draft mediation settlement than what we have now, then that’s what needs to happen in my mind.”
The vote to reject the proposed agreement was unanimous. That does not preclude a different kind of settlement: Captain’s could conceivably have been testing the commission’s limits with the proposal, and now may itself settle for something less ambitious. Jury trials on these matters are rare. But absent that settlement, the county’s slow-burn case with Captain’s BBQ continues.
Kathleen Brady says
Glad saner heads prevailed.
Concerned citizen says
The county should have never gotten themselves in this position in the first place. As usual the county commisioners can screw up a junkyard!!
Good for the County Commissioners! I’ve watched this whole fiasco unfold with the prior BOCC and administration. This is nothing more than taxpayer supported welfare for the business.
Dennis C Rathsam says
Finally….The County stands up for something!!!! Captain’s needs to move, & give the park back the people!!!! Let them pay the same as other owners pay for rent. These 2 owners think should get a sweet heart deal for reheated Q
My Lord! Who are these people and what have you done with our ‘roll-over on anything for Captain’s commissioners’?
Seriously, there appears to be a light at the end of the tunnel – if as the attorney says this goes to a jury trial, there is no way that Captains could prevail. I realize they are shooting for the stars and will be more than happy obtaining the moon but the county cannot allow this highway robbery to continue.
They want first claim on the pavilion? “Commissioner Donald O’Brien said, . . . “I can’t accept any control whatsoever of the pavilion for not even one day, it should be first come first served for the public.” This statement is flawed beyond reason, ‘first come, first served’ – Guess who will be there first, not you or me. it will be the ‘for profit business’ who is already sticking it to the taxpayer as a result of mus-management by the BOCC.
This business needs to pay a rent equal to other restaurants in the area, they should be denied any use of the PUBLIC USE pavilion, there needs to be a profit sharing provision to entice us (the taxpayers) to lease them OUR property and lastly, they need to become an active partner in maintaining the facility. Without their having any skin in the game, they have no motivation to preserve the facility. If they don’t like it, go build your building and act like a real business.
I ave never seen Captain’s BBQ being anything other than busy. By contrast, I have yet to see one child playing in the “Playgorund area.”
C’mon Man says
Whoever was representing the county in mediation needs to be fired. How could such a cockamamie settlement be brought forward in the first place?
C’mon man says
Think of a new name. I’ve been using “c’mon man”for years my friend.
Finally someone has some guts to do what is right for the taxpayers.
So when does the madness stop with the blasted BBQ joint cmon really
Concerned Citizen says
None of this would have happened if our Commisioners hadn’t compromised their ethics and integrity in the first place. That’s what happens when you accept bribes.
Now you’ll end up spending more time in court fighting this. Captains BBQ won’t allow this to go away because money exchanged hands. Once that happens you expect your favors to be repaid.
Get a formal investigation going from Law Enforcement agencies. And investigate both sides. Squash this thing once and for all.
I wish we as constituents could sue our BOCC for wasting valuable work time. And Mr. Hadeed for malpractice.
Well after the shameful sale of the hospital at least they did this one right. Yes let them go to trial…they milked this county taxpayers enough long so far. Lets get them out of Bings Landing our park! And this was Hadeed mediation? SAfter all the money they spent in high tkt lawyer Herron against our former SOE and still spending: file:///C:/Users/intam/Downloads/Sentencing-7-28-2020-at-2-pm%20(14).pdf….and against our residents watch dogs, the pretension that a Captains BBQ trial will be costly? They spent our hard earned taxes against honest former SOE Weeks with Tallahassee Attny Herron for the past six years didn’t they?
Mel carpenter says
I have supported 95 percent of the things Mr Mullins has been saying but if he is voting with bings restaurant owner’s to let them have say so over the public park and the pavilion that is used by Florida residents to make millions at expense of the public I can assure him I will work hard at the next election for his opponent!!disgraceful service from him.
laura lynn yorio says
Hes not voting with Captains. He just wanted it to be clear that everyone Understood that if this goes to trial they could lose.
Thank you O’Brien don’t give up and other commissioners and you will be voted back in .Seriously think about kids and others it is a park there shouldn’t even be alcohol because all the other boat ramps and parks are alcohol free what makes captains any special to get to sell alcohol not only request the pavilion and omg cluttering the boat ramp with boats?Seriously they need to find another piece of land and buy or there building across the road make that there new restaurant .Im curious how many agree with this ?Im a life long resident of this county and Captains started out being a good thing but seriously got to greedy !How dare you not even think about the taxpayers and community.Greed that’s all it is !How dare you want to sue the county also !Go find another facility like across the road and park should be for everyone .Bings should be like other places where anyone can rent the place out for special occasions and I’m sure the county and the taxpayers would agree on that .Win win !Get the Greed out of there you have turned your spoiled greed on the county and the taxpayers and not even thinking about the kids that come to the park and others to enjoy a nice boat ride .So hopefully commissioners will listen and rethink everything .
Commenters, please spare us the unsightly view of your tonsils, or wear a mask. Thank you.
I hope they sue the heck out of you then. Make you follow the original legal agreement the county signed.
Hammock Resident says
Great. Let them take Flagler County to court. No individual private business should get special treatment. It is not fair to local businesses who compete with this restaurant, that it is not an equal playing field. It is not fair to Flagler County taxpayers. In addition to all the ridiculous perks, including below marker rent, giving them priority on the Pavillion is absolutely ridiculous. Flagler County residents should have priority on a first name basis not a business with a sweetheart deal.
Lets hope this mediocre BBQ joint goes out of business during the pandemic, and Bings goes exclusively back to a park.
I’d take my chances with a jury decision. I believe the citizens of the county are willing to pay the costs whatever the results. Bings BBQ is becoming a blood sucker. Their greed and entitlement against what the public wants. RIP
GOOD! So glad to see that the BOCC finally showed so back bone.
Now, if only they could find some courageous leadership to help save pain and suffering from Covid 19.
Percy's mother says
Re the mediation agreement, do we know what entity or entities participated in mediating for the county? Or, is it possible to find out which entity or entities participated in mediation for Flagler County?
What happened to the signed contract you had with them for a new building? Looks like you lose in court
Paula Sceri says
This is a legal chess game, whereby the taxpayer loses no matter the outcome.
Hammock Bear says
Past time Capt’s Restaurant moved to a private location. The amount of time and money spent and or, wasted on this , is an insult to every Flagler Co. Taxpayer. This property has been enjoyed by people locally and from afar. Keep it in the old Southern charm for families to enjoy. The patrons of Capts. surely will follow them to a new location. Bing’s was intended for the public not for profit to a private business.
Dedicated American says
The only reason Commissioner O’Brien spoke up , think about it readers, he is running again for commissioner. It is time he is voted out along with Commissioner Sullivan. We tax payers must get rid of all the good ole boys club here in this county.